Synopsis

Claimant brings a post-judgment motion seeking to compel a lump sum payment of
the judgment pursuant to CPLR 5036. Claimant cannot and did not establish that
unanticipated medical, dental or other needs have arisen warranting payment in a
lump sum. The Court, restrained by the requirements of CPLR 5036, must DENY
Claimant’s motion.

Case Information

UID:

2009-018-040

Claimant(s):

KAYLA DuPONT, an Infant Under the Age of Ten Years by and through MARY and MICHAEL T. DuPONT, her Parents and Natural Guardians

ANDREW M. CUOMOAttorney General of the State of
New YorkBy: Michael R. O’Neill, Esquire
Assistant Attorney General

Third-party
defendant’s attorney:

Signature date:

August 31, 2009

City:

Syracuse

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

Claimant brings a post-judgment motion seeking to compel a lump sum payment of
the judgment[1] pursuant to CPLR 5036. Defendant
opposes the motion. The Court heard oral arguments on the motion and took
testimony from witnesses.

The claim was brought on behalf of the infant as a result of medical
malpractice. After a lengthy trial, the Court found the Defendant 100 percent
liable for the injuries suffered by Kayla DuPont. The award of $14,833,811
reflects the severe, extensive and catastrophic damages suffered by Kayla.

Following the trial Decision, the parties entered into a Stipulated Order
directing entry of a CPLR Article 50-A Judgment, which was filed on November 24,
2008. A final judgment was entered on December 4, 2008. The stipulated Order
and the judgment directed a lump sum payment of $2,944,264 representing
$1,200,000 for past pain and suffering; $250,000 as the lump sum portion of
future damages; $1,414,608 for attorneys’ fees, and $79,656 for expenses
and disbursements. The balance of the award was to be paid out periodically in
accordance with CPLR Article 50-A with Defendant purchasing an annuity to fund
these future payments. In lieu of these periodic payments, Claimant now seeks a
lump sum payment of the amount needed to fund the annuity, plus accrued interest
to date. CPLR 5036 provides in pertinent part:

(a) If, at any time after entry of judgment, a judgment creditor

or successor in interest can establish that the continued payment of the
judgment in periodic installments will impose a hardship, the court may, in its
discretion, order that the remaining payments or a portion thereof shall be made
to the judgment creditor in a lump sum. The court shall, before entering such
an order, find that: (i) unanticipated and substantial medical, dental or other
needs have arisen that warrant the payment of the remaining payments, or a
portion thereof, in a lump sum; (ii) ordering such a lump sum payment would not
impose an unreasonable financial burden on the judgment debtor or debtors; (iii)
ordering such a lump sum payment will accommodate the future medical and other
needs of the judgment creditor; and (iv) ordering such a lump sum payment would
further the interests of justice.

It is Claimant’s burden on this motion to establish the statutory
criteria which would permit the Court to order the payments be made in a lump
sum. The initial consideration is whether payments in periodic installments
will impose a hardship on Kayla. Despite great effort and presentation,
Claimant has failed to meet this initial threshold. Although a lump sum payment
might best accommodate Kayla’s future needs, payments made by periodic
installments will not impose a hardship. Even if the Court could get beyond
this initial factor, Claimant cannot and did not establish that unanticipated
medical, dental or other needs have arisen warranting payment in a lump
sum.

Accordingly, the Court, restrained by the requirements of CPLR 5036, must DENY
Claimant’s motion.

August 31, 2009Syracuse,
New York

HON. DIANE L. FITZPATRICKJudge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Unsworn, unaffirmed 14-page history of this claim signed by Daniel S.
Weinstock, Esquire, in support, with exhibits attached thereto.